By Gretchen Schuldt

The Department of Corrections must turn over a database containing information about sex offenders that a defense lawyer contends could show the state has been overstating how likely sex offenders are to commit future sexual violence, the State Supreme Court ruled, 4-3, this week.

Justice Rebecca Dallet's opinion for the majority recounts how far DOC officials went to block lawyers for Anthony Jendusa from getting the information.

Among other things, the Department of Corrections' legal counsel twice advised its staff not to turn over a database containing information about state sex offenders, despite a subpoena and then a court order requiring the agency to do so, Dallet wrote. A DOC psychologist testified he failed for more than a year to open an email that could potentially undercut his evaluation methods. And a DOC research committee said Jendusa could have the information, but then never provided it.

Dallet was joined in her opinion by Justices Ann Walsh Bradley, Brian Hagedorn, and Jill Karofsky. Justice Annette Ziegler dissented, joined by Justices Rebecca Grassl Bradley and Patience Rogensack.

Ziegler said state statute prohibited Jendusa from having access to the database because "neither the State nor Jendusa claimed they would introduce the raw data at trial." 

Jendusa contends the database of Wisconsin offenders is key to demonstrating that Christopher Tyre, a DOC psychologist, used the wrong base from which to calculate the chances of repeated sexual violence.

The lawyers contend that using a base of Wisconsin offenders, rather than Canadian and Danish offenders, in a risk assessment tool used by the state, could significantly reduce the reoffense likelihood scored by his client, Anthony James Jendusa.

In fact, when Tyre finally gave a summary of the data in the email, the "preliminary (Wisconsin) base rate was roughly one-third of the base rate he relied on to predict Jendusa's recidivism risk," Dallet wrote.

(Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases, Jendusa's appellate lawyer, Assistant State Public Defender Dustin C. Haskell, said in a brief.)

The risk assessments are critical in determining whether sex offenders should remain incarcerated under civil commitments after their prison terms end. A finding that the state has overstated the likelihood of reoffending could have a major impact on civil commitment proceedings for other sex offenders.

The upshot

While this court need not always follow federal constitutional interpretation in lockstep, we conclude that neither the Wisconsin Constitution nor the purposes underlying the Miranda warnings support a judicially-created rule treating all incarcerated individuals as "in custody." In the alternative, (Brian L) Halverson contends that his incriminating statements should be suppressed because he was "in custody" under the traditional Miranda custody test. We disagree and conclude that Halverson was not in custody for purposes of Miranda. 

Background

​The question in this case concerns the scope of "custody" for purposes of Miranda. The defendant, Brian L. Halverson, was an inmate in jail when he returned a call from an officer regarding an incident at Halverson's prior correctional institution. During the short call, the officer asked Halverson about an inmate's missing property, and Halverson admitted that he took and destroyed the property. No Miranda warnings were given. Halverson argues that his statements must be suppressed because he was in custody as an inmate in jail, and therefore he also was most assuredly "in custody" for purposes of Miranda.

In a 1999 case, this court agreed. Relying on United States Supreme Court precedent, we held "that a person who is incarcerated is per se in custody for purposes of Miranda." In 2012, however, the United States Supreme Court clarified this is not what federal law requires. In Howes v. Fields, the Court concluded that the Constitution contains no such per se rule. The Court emphasized that "custody" for purposes of Miranda is a term of art; it is not consonant with the inability to leave or with incarceration generally. Whether a suspect was "in custody" depends on an inquiry of the totality of the circumstances, looking to the degree of restraint and coercive nature of the interrogation....

The circuit court relied on (an officer's) uncontested testimony as factual background, but it granted Halverson's motion to suppress. The circuit court concluded it was bound to apply Armstrong's per se rule that incarcerated individuals are in custody for Miranda purposes....

The State appealed and the court of appeals reversed. The court of appeals held that the per se rule adopted by this court in Armstrong was effectively overruled by the United States Supreme Court in Howes, and it declined to readopt the per se rule under the Wisconsin Constitution. It further concluded that Halverson was not in custody for purposes of Miranda under the totality of the circumstances. We granted Halverson's petition for review and agree with the court of appeals. 

The guts

The issues in this case center on the nature of "custody" for purposes of determining whether Miranda warnings must be administered. Halverson contends he was in custody for two independent reasons. First, Halverson argues all incarcerated individuals should be deemed "in custody" for purposes of Miranda solely due to their incarceration. Although the United States Supreme Court rejected a per se rule to this effect, he asks us to adopt this approach under the Wisconsin Constitution. Second, if we decline that request (as we do), Halverson asserts the totality of the circumstances nonetheless demonstrates he was in custody for purposes of Miranda....

Miranda is a judicially instituted effort to protect against self-incrimination by creating an unrebuttable legal presumption of coercion whenever the warnings are not administered.... 

The Miranda custody analysis proceeds in two steps. First, courts "ascertain whether, in light of 'the objective circumstances of the interrogation,' a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" This requires examining the totality of the circumstances, including relevant factors such as "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning."  The inability to leave and terminate the conversation, however, is not enough on its own to trigger the need for Miranda warnings....Instead, courts proceed to the second step in the custody analysis where they ask "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda."

(In Howe) the (U.S. Supreme) Court expressly rejected a categorical rule that questioning an inmate is custodial. Instead it reviewed and re-emphasized the two-step, totality-of-the-circumstances custody inquiry established in prior cases. Using that analysis, it reasoned that incarcerated individuals are not automatically in custody for purposes of Miranda. The Court offered three reasons to support its conclusion – all centering on whether the environment necessarily contains the same coercive pressures that animated the Court's holding in Miranda.  First, questioning an incarcerated person does not involve the same kind of shock accompanying someone arrested in the first instance, and therefore the coercive pressures are substantially diminished. Second, incarcerated individuals have far less pressure to speak with the hope of securing release. They know that when the questioning is finished, they will remain incarcerated. Finally, incarcerated individuals know that their questioners "probably lack authority to affect the duration of [their] sentence." Therefore, the Court held that incarceration alone does not necessarily implicate the same anti-coercion interests that motivated the Court's prophylactic efforts in Miranda. 

In this case, the court of appeals correctly deduced that it was bound to follow the United States Supreme Court's decision in Howes rather than our earlier decision in Armstrong....
***
Halverson recognizes that Miranda warnings are a prophylactic tool fashioned to protect the privilege against self-incrimination, a right independently protected in both constitutions. Halverson therefore asks this court to create an expanded prophylactic to protect a person's rights under the Wisconsin Constitution....

We have generally interpreted Article I, Section 8 (of the Wisconsin Constitution) consistent with the protections afforded by the Fifth Amendment. Halverson provides no textual or historical basis to suggest any meaningful difference between the two provisions meriting an expanded judicially-created prophylactic rule. Nor do we see any basis in the Wisconsin Constitution for Halverson's request.

Instead, Halverson focuses chiefly on the argument that incarceration inherently creates the kind of custodial circumstances meriting Miranda warnings. We agree, however, with the Supreme Court's determination in Howes that a per se rule does not serve the anti-coercion purposes of Miranda....Halverson's circumstances do not even satisfy the standard requirements for custody under Miranda's framework. Further, no facts in Halverson's case indicate coercion or anything close to it. And that is the whole point of requiring Miranda warnings in the first place.... This was why the United States Supreme Court rejected the per se rule in Howes, and Halverson offers no strong reasons to diverge from this rationale.  

Halverson has an alternative argument——namely, that he was "in custody" for purposes of Miranda under the prevailing two-step inquiry examining the totality of the circumstances....

For many of the same reasons, proceeding to the second step of the custody analysis, we conclude Halverson's environment did not "present[] the same inherently coercive pressures as the type of station house questioning at issue in Miranda." He spoke to Officer (Matthew) Danielson over the phone in the jail's community room where he was alone, without physical restraints, and could sit or stand at will. The interview lasted less than five minutes, and during that time Officer Danielson kept his tone calm. These circumstances are nowhere close to the kind of coercive pressures of station-house questioning that sparked the Supreme Court's holding in Miranda. 

Concurrence

I join the majority opinion in full. I write separately to address the petitioner's reliance on State v. Knapp. Because the Knapp court's interpretation of Article I, Section 8 of the Wisconsin Constitution lacks any mooring in text or history, this court should restore the original meaning of this constitutional provision....

The Wisconsin Supreme Court held that the Wisconsin Constitution's analog to the Fifth Amendment – Article I, Section 8 – affords greater protections than the United States Constitution. In particular...(the) second Knapp court held that, "[w]here physical evidence is obtained as the direct result of an intentional Miranda violation, . . . [Article I, Section 8 of the Wisconsin Constitution] requires that the evidence must be suppressed...." The Knapp II court invented the sanction of suppressing evidence because the officer's "conduct at issue was particularly repugnant and require[d] deterrence." The Knapp II court also invoked the "preservation of judicial integrity" as a basis for contriving a different meaning for Article I, Section 8 than the United States Supreme Court gives the nearly identical Fifth Amendment....

Halverson's reliance on that case to request an expanded prophylactic to protect the privilege against self-incrimination indicates it is time for this court to revisit Knapp's holding....Restoring the proper method of interpreting Article I, Section 8 is imperative if this court takes seriously its oath to uphold the Wisconsin Constitution. The question for this court is not whether the Wisconsin Constitution should afford greater protections, but whether it "actually affords greater protection[s]...." 

By Gretchen Schuldt

​Did the state misrepresent data it used to argue that convicted felons should never be allowed to own guns?

State Supreme Court Justice Brian Hagedorn said yes, and a WJI analysis suggests the state's presentation was misleading, at best. 

It is unclear, though, that having more accurate data would have changed the court's ruling in State v. Roundtree upholding the gun possession ban law that courts had also previously upheld.

Assistant State Attorney General Sarah Burgundy and Attorney General Josh Kaul contended in a brief that a Department of Corrections study showed that "Public-order offenders had a significant rate of recidivating with violent crimes. For example, based on data from prisoners released in 2011 for public order offenses, 21.4% recidivated with a violent offense..."

WJI, based on the data contained in the report, determined that 6% of public-order offenders recidivated with violent crimes. 

Reached by email for comment, Burgundy simply referred WJI to the DOC study.

Public-order offenses, the study said,  included non-property, non-violent crimes such as fifth- or sixth-offense drunk driving, felony failure to pay child support, possession of a firearm by a felon, and felony bail jumping.

The appellant in the gun case, Leevan Roundtree, was convicted in 2003 of felony failure to pay child support and was placed on probation, which he completed; in 2015, police found a gun under his mattress, and he was convicted of felon in possession of a gun and sentenced to 18 months in prison and 18 months of extended supervision. 

Roundtree argued unsuccessfully that the gun ban was unconstitutional when applied to non-violent offenders like him.

DOC defined recidivism in its report as "Following an episode of incarceration with the Wisconsin DOC, to commit a criminal offense that results in a new conviction and sentence to Wisconsin DOC custody or supervision."

Burgundy and Kaul, in their brief, also said the study's data showed that "the 21.4% of public-order offenders recidivating with a violent crime was higher than that of property offenders (16%) and drug offenders (17.9%)," they wrote. "And it was just seven percentage points lower than the rate of violent offenders (28.3%).

WJI determined that 6.6% of property offenders, 5.5% of drug offenders, and 7.7% of violent offenders recidivated with violent crimes.

The DOC study did not measure the released offenders who recidivated with violent crimes, as the brief suggested. It measured instead the share of recidivists who committed such crimes, as Hagedorn said in his dissent.

The state's brief did not make clear that the percentages it cited so prominently represented a percentages of percentages.

Note: We are trying something new here, crunching Supreme Court of Wisconsin decisions down to size. (Left to themselves, some of our justices do go on so.) The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  In this case, we've omitted a concurrence by Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, because it addresses a secondary issue.
​
Majority: Ann Walsh Bradley, joined by Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. (20 pages)

​The upshot

The petitioner, Leevan Roundtree, seeks review of an unpublished per curiam decision of the court of appeals affirming his judgment of conviction and the denial of his motion for postconviction relief. He asserts that the felon-in-possession statute under which he was convicted is unconstitutional as applied to him.

Specifically, Roundtree contends that Wisconsin's lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction over ten years ago for failure to pay child support does not justify such a ban. He maintains that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm....
 
We determine that Roundtree's challenge to the felon-in-possession statute requires the application of an intermediate level of scrutiny.
 
Under such an intermediate scrutiny analysis, we conclude that his challenge fails. The statute is constitutional as applied to Roundtree because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence.....

The Background

In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days. As a consequence of these felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm.

Milwaukee police executed a search warrant at Roundtree's home on October 30, 2015. Under his mattress, officers located a revolver and ammunition. A record check of the recovered gun revealed that it had been stolen in Texas. Roundtree claimed that "he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen." 

​The State charged Roundtree with a single count of possession of a firearm by a felon contrary to Wis. Stat. § 941.29(2). He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision. 

The guts​

Roundtree's as-applied challenge is based on the contention that his conviction for failure to pay child support is a nonviolent felony and thus is insufficient to curtail his constitutional right to bear arms. He argues        that "[d]isarming [him] does not in any way advance public safety, but deprives him of his right to keep and bear arms for self-defense." As this is an as-applied challenge, he must demonstrate that his constitutional rights specifically were violated, not that the statute is unconstitutional in all applications....

The United States Supreme Court has made clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited."  The same is true of the right provided by our State Constitution. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 

In Heller, the Court struck down a regulation barring residential handgun possession as contrary to the Second Amendment. Id. In doing so, the Court observed "that the Second Amendment conferred an individual right to keep and bear arms." It was careful, however, to delineate the reach of its analysis:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive ​places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. 

Roundtree was convicted of failure to support a child for over 120 days. In his view, this is different in kind from the crime at issue in Pocian, where the defendant was convicted of uttering a forgery as the underlying felony. Put frankly, he suggests that failing to pay child support is not as bad as "physically taking a victim's property."

But failure to pay child support is every bit as serious as uttering a forgery if not more so. Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. Roundtree chose to keep money for himself that rightly belonged to his children. And, to further add to the egregiousness of his offense, he committed this crime repeatedly by failing to support for at least 120 days. By all accounts this is a serious offense.

Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree. The Seventh Circuit determined as much in Kanter when it concluded that "the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence."  The legislature did not... create a hierarchy of felonies, and neither will this court. 

Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here. 

Such assertions are echoed by data from the Wisconsin Department of Corrections (DOC). For example, DOC data indicate that among recidivists who committed public order offenses, such as failure to pay child support, and were released from prison in 2011, 21.4 percent recidivated with a violent offense. As the State strikingly observes in its brief, "the 21.4 percent rate of public order offenders recidivating with a violent crime was higher than that of property offenders (16 percent) and drug offenders (17.9 percent). And it was just seven percentage points lower than the rate of violent offenders (28.3 percent)." This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence."

Further, the fact that Roundtree's conviction occurred over ten years ago does not affect the result. Roundtree asserts that he poses no danger to public safety and should be able to possess a firearm as a result. However, the record indicates that the gun Roundtree possessed was stolen and purchased off the street. Supporting street level gun commerce is hardly the benign action Roundtree would have us believe it is.

By Gretchen Schuldt

​It was a 4-3 squeaker in the State Supreme Court this week as it upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race.

The full document is chock-full of dissents and concurrences – the entire thing is 81 pages long and long, and yes, there is a bit of the snark we have come to expect from Justice Rebecca Grassl Bradley.

We are dissecting the decision, trying to make it a bit easier for non-lawyers to follow by arranging it in some sort of logical order, grouping excerpts from the main decision, written by Justice Brian Hagedorn, with excerpts from the relevant dissents and concurrences.

We also aiming for the major points, and don't plan to replicate every word in the decision.

Our introduction to the decision is from Hagedorn, who summarized it nicely in his majority opinion which was joined by Dallet, Walsh Bradley, and Justice Jill Karofsky.

The (Trump) Campaign focuses its objections on four different categories of ballots – each applying only to voters in Dane County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25, 2020. Second, it argues that a form used for in-person absentee voting is not a "written application" and therefore all in-person absentee ballots should be struck. Third, it maintains that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots are therefore invalid. Finally, the Campaign asserts that all ballots collected at "Democracy in the Park," two City of Madison events in late September and early October, were illegally cast.

A big theme for the justices was whether Trump's complaints were filed in a timely manner, and that theme ran through much of the justices' writings.

This was definitely the least contentious issue the justices dealt with.

State law allows voters to declare themselves indefinitely confined if they meet legal requirements. This gives them the ability to avoid the requirement to present a photo ID to get an absentee ballot. 

The Dane and Milwaukee County clerks in March, in Facebook posts, said any potential voter could declare indefinite confinement because of the pandemic and Gov. Tony Evers' "Safer-at-Home" which was in effect at the time. Within a week, though, the Supreme Court said the Dane/Milwaukee County advice was erroneous. and the county clerks modified their postings.

Here is what Hagedorn, delivering a bench slap to Team Trump, said in the majority opinion.

The (Trump) Campaign does not challenge the ballots of individual voters. Rather, the Campaign argues that all voters claiming indefinitely confined status since the date of the erroneous Facebook advice should have their votes invalidated, whether they are actually indefinitely confined or not. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the Campaign asks us to apply this blanket invalidation of indefinitely confined voters only to ballots cast in Dane and Milwaukee Counties, a total exceeding 28,000 votes. The Campaign's request to strike indefinitely confined voters in Dane and Milwaukee Counties as a class without regard to whether any individual voter was in fact indefinitely confined has no basis in reason or law; it is wholly without merit.

Roggensack, in a dissent joined by Grassl Bradley and Ziegler, was the only other justice to directly address the issue, and she did so only briefly. 

In the pending matter, we do not have sufficient information about the 28,395 absentee voters who claimed this status in Milwaukee and Dane counties to determine whether they lawfully asserted that they were indefinitely confined prior to receiving an absentee ballot. Therefore, I go no further in addressing this contention.                                        Next: Timeliness

Updated Dec. 14, 2020 to  correct the number of pages in the Fair Maps Coalition submission.

By Gretchen Schuldt

Almost 2,000 additional comments opposing a proposal to give the State Supreme Court power to draw state redistricting maps were made public in the days following the Nov. 30 comment deadline.

Negative comments came from representatives of Gov. Tony Evers; a group of nine law professors; three election scholars; two former state senators; and 1,932 various Wisconsin residents – the last in a 712-page compilation of comments from the Fair Maps Coalition. All of the submissions can be found here.

The proposal, filed with the Supreme Court by the Wisconsin Institute for Law and Liberty and former State Rep. Scott Jensen,  seeks to change the way redistricting disputes are handled by the courts.  WILL is a conservative law firm.

Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies.

The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say.

Assistant Attorneys General Anthony D. Russomanno and Brian P. Keenan, on behalf of Evers, said Jensen and WILL are asking the Supreme Court to adopt rules that conflict with the court's traditional role in original actions.
​
"And they do so in the context of especially complex trial court litigation, without meaningfully addressing the core factual and practical issues that will arise," they wrote. "Further, the proposal codifies court involvement in a political process and does so before that process can even begin."

"We caution against the use of judicial rulemaking to grant jurisdiction to the Wisconsin Supreme Court over an original action that requires extensive fact-finding, is overtly political, and for which there are adequate alternative forums for resolution in the first instance," wrote the nine law professors "We do not challenge this Court’s authority to adopt rules on original jurisdiction or to hear the types of cases described in the petition. Instead, we suggest that this Court exercise its discretion to deny the petition..." 

The nine were Steven G. Calabresi, Zachary D. Clopton, James E. Pfander, and Martin H. Redish – Northwestern Pritzker School of Law; Maureen Carroll – University of Michigan Law School;  Michael C. Dorf – Cornell Law School; Atiba R. Ellis and Edward A. Fallone – Marquette University Law School; and David S. Schwartz – University of Wisconsin Law School.

Three other lawyers, who are election scholars, noted that the Supreme Court spent years considering redistricting issues before it declined in 2009 to adopt court rules for redistricting disputes.

The Jensen / WILL submissions do not mention the court's earlier consideration, wrote the experts, Justin Levitt, of the Loyola Law School; Nicholas Stephanopoulos, of Harvard Law School; and Robert Yablon, of UW Law School.

"That is a bewildering omission," they wrote. "To overlook the relevant history is to miss hugely important lessons about the challenges of rulemaking in this area."

They continued: "When this court last considered the issue, two overarching concerns drove its decision not to act: first, that adopting rules would encourage redistricting disputes to be resolved through litigation in this court rather than through the political process; and second, that inviting politically fraught redistricting litigation would threaten the court’s institutional integrity. On each of these scores, this proposed rule is far worse than the proposal that the court previously rejected."

Former State Senators Dale Schultz, a Republican, and Tim Cullen, a Democrat, submitted joint comments opposing the proposal.

"We...know that in times of increased political division, it is unlikely the Legislature will accomplish this important work if it knows the State Supreme Court is waiting, willing to take the issue out of their hands," they wrote. "We ask you to respect the Legislature as a coequal branch of government, and not adopt this rule that would prematurely involve the court in a political question."

A (very) small sampling of the comments from 1,932 individuals and compiled by the Fair Maps Coalition is below. 

"If this rule change is to take place, it will further limit the ability of the public to provide input on the process. I feel all stakeholders, not just party representatives, should continue to have an opportunity to influence this process. The rule change request is clearly politically motivated, and so should be denied in favor of the current process that uses an independent, non elected federal judge." – Aaron Day, Green Bay

"This will result in harmfully politicizing the court, excluding nonpartisan groups from full participation. This rule also provides insufficient transparency measures. Transparency is an important part of all branches of government in our democracy." – Agnes Welsch, Menomonie

"I oppose the WI Supreme Ct being allowed to take jurisdiction on redistricting matters. All parties should be allowed to plead their case about redistricting matters, not just political parties. Also, allowing the WI Supreme Ct to simply disregard the proposed rules and come up with their own, if they wish to, is unfair and improper and will lead to serious questions about political influence and transparency. Finally, Plaintiffs should be allowed to plead their case in federal courts, if necessary, to make sure their grievances are heard!" – Arthur Anderson, Elm Grove

"Allowing a rushed process disadvantages many individuals and groups. To honor our history as a democratic nation, we must allow all voices to be heard on equal grounds. Political parties may come or go, but people are here to stay." – Ann Lewandowski, Waunakee

"The GOP 'Justices' on the WI Supreme Court are setting WI back hundreds of years!" – Michael Goodman, Madison 

Revised Dec. 1, 2020

By Gretchen Schuldt

​An effort to get the State Supreme Court to give itself the power to draw new legislative maps based on the pending census drew negative reactions from 40 organizations and individuals who submitted comments on the proposal before Monday's deadline.

There were just two comments favoring the proposal. One of them  was by attorney Misha Tseytlin on behalf of Republican U.S. Representatives Glenn Grothman, Mike Gallagher, Bryan Steil, and Tom Tiffany and Rep.-elect Scott Fitzgerald. 

Attorney Kevin M. St. John also filed comments in favor of the new rule. St. John was acting on behalf of Assembly Speaker Robin Vos and Fitzgerald, in his role as State Senate majority leader. Both Vos and Fitzgerald are Republicans.

Those two said the proposal protects the legislature’s and state's constitutionally conferred primary roles in redistricting, minimizes the potential for "federal court intrusion," and "promotes the sovereign interests of the citizens of this state."  

Many of the comments opposing the change focused on the restrictions on public participation in the redistricting process. 

The Wisconsin Justice Initiative, for example, said in its comments that the proposal "ultimately allows the Court to develop its own redistricting proposal, establish many of the rules for any public comment on the proposal, and approve the proposal. The petition leaves it unclear whether non-governmental interested groups or individuals would be allowed to file formal objections to any Court map or have any say on it at all, as their right to participate would be so severely limited."

The petition, filed by former State Rep. Scott Jensen, a Republican, and the Wisconsin Institute for Law and Liberty, the conservative law firm, seeks to change the way redistricting disputes are handled by the courts. 

Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies.

The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say.

"WILL’s proposed changes would only allow for consideration of partisan interests rather than those of individual Wisconsinites and civic groups that can provide for knowledge about their regions and how certain redistricting of areas would affect them..." the Dane County Board said in comments submitted to the Court. "WILL’s proposed changes decrease transparency in the redistricting process and would allow the Court to bypass consideration of any views by groups other than elected officials and/or political parties."

"The rules, if adopted, will increase the politicization of the Court while they decrease the public trust in the redistricting process," the ACLU wrote.

The Supreme Court considered a similar petition previously and a majority of justices rejected it, the organization said.

"As Justice (David) Prosser stated during the 2009 rulemaking process, the Court taking original jurisdiction in redistricting cases would be a 'fundamental institutional mistake for this Court'  as it would place the Court at the center of the political arena."

​"If accepted," the ACLU continued, "the proposed rule will undermine the public’s trust in the Court and in the redistricting process. It is clear that the public wants a fair, impartial process: over the past few years, 34 county boards have passed resolutions, and voters in 28 Wisconsin counties and 19 municipalities throughout the state have passed referendums, in support of fair electoral maps and a non-partisan 2021-22 redistricting process."

"A traditional trial and appeals process to resolve redistricting challenges allows Wisconsin voters and groups to follow cases throughout the process and, if motivated and possible, get involved," Linda Laarman wrote. "Vesting judicial resolution in a single court — the Wisconsin Supreme Court — would diminish the ability to follow cases and participate in them."

Under the petition, the Supreme Court would have deadlines for actions on redistricting, but would be allowed to disregard most of the dates, she said. 

"The rationale, according to the petition?" Laarman wrote. “ 'Because circumstances can always change.' ”

Below are excerpts from other comments submitted. The full comments can be found here.

League of Women Voters of Milwaukee County – "The proposed rule change vests powers and duties in this court that currently belong to the state legislature. Seizing these powers and responsibilities under the guise of 'divided government,' as an administrative rule change, grossly violates the separation of powers with our constitutional framework. The creation of fair voting districts dramatically impacts the quality of democracy in our state and should be accomplished with transparency and neutrality."

Linda Bochert – "I write, as a private citizen and voter, to raise a predicate question: should the Court adopt a rule at all? I think not. Not because the issue is political, complicated, controversial, or simply hard – although it is all of those things. But because the redistricting issue it proposes to solve is inherently not a judicial issue but a legislative one."  

Douglas Owens-Pike – "As a farmer, making my living by tilling the soil, and a member of the Farmers Union, I am shocked at the audacity of one narrow interest group's attempt to make it even more difficult to challenge an already biased, unfair redistricting process. The proposed rules change would throw a dark cloak over an already closed-door process, shrouding out the light of open participation from a wider swath of public interests that have a history of being represented poorly."

Sarah S. Jones – "Wisconsin citizens deserve fair representation in their legislature, determined by fairly-designated voting districts. They deserve a process for drawing those districts which operates without partisan affiliation; allows ample time for deliberation; admits comment by any concerned groups and individuals, including the non-partisan; provides for review by appropriate levels of state or federal court; and maintains transparency throughout."

All on the Line – The proposed rule "does not make clear who is permitted to object or rebut the Court’s proposed map plan, but instead suspends the creation of that list to a later date. This could lead to absurd results, such as a group being able to submit a proposed map, but not being able to submit an objection or rebuttal to the Court’s plan, and vice versa. Moreover, the Petition will preclude participation by community groups that lack the sophistication to understand brand new judicial procedures or lack the technology to draw their own map. The Court’s rules should not limit public input on a proposed map where the rules of civil procedure or prudential considerations could not."

Campaign Legal Center – The Proposed Rule has numerous flaws. Most notably, the Proposed Rule: (1) invites premature litigation; (2) mistakenly suggests that the legislature can adopt new districts without presenting those districts to the governor for approval or veto; (3) prioritizes involvement of partisan interests as parties; (4) short shrifts or, at the Court’s discretion, omits entirely the fact-finding process necessary to resolve redistricting disputes; and (5) establishes inadequate procedures governing proposed maps. 

Tseytlin – We support Rule Petition 20-03 for three reasons. First, it would restore the primacy of this Court vis-à-vis the federal courts in resolving any impasse in Wisconsin’s congressional-redistricting process. Second, it meets this Court’s criteria in Jensen v. Wisconsin Elections Board...for 'establish[ing] [the] protocol for the adjudication of redistricting litigation.' Third, it puts forth a process that will allow the Justices of this Court—who are elected by the people statewide to serve on the State’s highest court—to adjudicate any dispute over the congressional districts well before statutory deadlines for the Fall 2022 Elections, which may not be possible if this Court were to allow such redistricting disputes to proceed first in the circuit court or federal district court."

Common Cause – "Our opposition to the Jensen petition is based on both the narrow scope of interest in the upcoming redistricting process which it seeks to define, as well as the abbreviated period of time in which it proposes the Court to act. Both of these factors undermine and even largely exclude altogether, the interests and concerns of most Wisconsin citizens, including our members. It is important to remember that voters and citizens are the ones whose rights are most impacted by redistricting, and who deserve to be protected by the Court. The petition seeks a rush to judgment without allowing citizens to have their concerns adjudicated and addressed through even the normal channels of judicial review."

By Margo Kirchner

​Trial courts must issue specific factual findings on why a person is a danger to self or others before extending an involuntary commitment, the Wisconsin Supreme Court recently held.

Moreover, said the court, general concerns regarding a person’s mental state, inability to maintain employment, and inability to care for oneself are not sufficient for a finding of dangerousness. Justice Ann Walsh Bradley authored the court’s opinion in Langlade County v. D.J.W.

Chief Justice Patience Drake Roggensack dissented, saying she would have recommitted D.J.W. on grounds that Langlade County never even raised in Circuit Court or on appeal. Justice Rebecca Grassl Bradley also dissented, on different grounds.

In January 2017, a circuit court in Langlade County found D.J.W. mentally ill, dangerous, and in need of treatment. The court committed D.J.W. to custody for six months and ordered involuntary treatment and medication. In June 2017, Langlade County petitioned to recommit D.J.W. for a year.

The Circuit Court appointed Dr. John Coates to examine D.J.W. in connection with possible recommitment. Though Coates wrote a report following the examination, at the July 2017 recommitment hearing the County presented only Coates’ oral testimony. The report was not admitted as evidence.

Coates testified at the hearing that D.J.W. had schizophrenia, a history of hallucinations over three years, and an illogical thought process with “grandiose illusions.” Coates said D.J.W. reported seeing the devil and hearing voices in the months prior to the hearing and that D.J.W.’s illness was treatable with psychotropic medication.

When asked whether D.J.W. was a danger to himself or others, Coates opined that if D.J.W. were to end treatment he would likely exacerbate his illness and experience hallucinations. But, said Coates, “the greater risk is just his inability to properly care for himself and to properly socialize if he goes untreated.”

Coates noted that D.J.W. had been living with his parents, quit his job because he thought he was the Messiah, and obtained disability benefits. To the doctor, these facts suggested that D.J.W. could not independently care for himself and would be homeless if his parents did not provide shelter. Coates thought D.J.W.’s judgment was still impaired.

Coates testified that he did not know if D.J.W. was suicidal or homicidal. But, he said, acutely psychotic individuals’ actions are unpredictable and for D.J.W. suicidal and homicidal ideations were possible.

Coates reiterated that the “major danger” to D.J.W. was that if he stopped medications he would be delusional and hallucinating and unable to interact appropriately with others. Coates continued: “So the major danger is to himself. I don’t think he’s necessarily a violent man that’s going to go out and harm others.”
​
On cross-examination, when pressed about how D.J.W. quitting his job showed dangerousness, Coates responded that D.J.W. lost his employment and could not provide for his basic needs, had been found disabled, and would be homeless without his parents’ help.